The other party does not first have to be convicted in a criminal trial or charged with the crime. As long as you suffered damages as a result of the other party’s wrongful actions, you can file a civil lawsuit.
To clarify, the difference between an assault and battery is as follows:
- Assault (Penal code 240) is an action that may inflict physical harm or unwanted touching on someone else; and
- Battery (Penal code 242) is the actual infliction of force or violence on someone else.
Although this is not an exhaustive list, examples of assault can include simple assault, physical, sexual, and aggravated.
The elements of assault include the following:
- Intention: The defendant must have intended for their act to create an apprehension of fear or harm.
- Reasonable Apprehension: The Plaintiff must have reasonably perceived that a harm or threat of harm was being directed at him/her.
- Imminent Harm: The Plaintiff’s harm must be in response to a threat that is immediately about to occur, as future threats are not considered assault.
Further, our firm has represented clients who have been sexually assaulted, which is defined as any unwanted or coerced sexual contact. Lack of consent is crucial to sexual battery. If the person is not willing or able to give consent, then the sexual act was forced. For instance, a person who is intoxicated due to a high consumption of alcohol cannot give consent to engage in intercourse.
Because battery is an intentional tort, the victim can file a civil lawsuit against the perpetuator for monetary damages. Civil battery requires that the perpetrator had intent to perform the act that resulted in the injury.
Generally, battery occurs when someone offensively touches another person. The touching does not need to inflict harm, so spitting on another person can constitute battery. More specifically, the elements of battery are: 1) an act by a defendant, 2) an intent to cause harmful or offensive contact; and 3) harmful or offensive contact to the Plaintiff. And, for civil matters, civil cases require the added element of damages.
If you or a loved one has been accused of battery/assault or you are being accused, we invite you to contact Webb Law Group APC., to talk with an experienced injury lawyer.